Download On Amending the Constitution: A Plea for Patience

University of Arkansas at Little Rock Law Review
Volume 12 | Issue 4
1989
On Amending the Constitution: A Plea for
Patience
Ruth Bader Ginsburg
Follow this and additional works at: http://lawrepository.ualr.edu/lawreview
Part of the Constitutional Law Commons
Recommended Citation
Ruth Bader Ginsburg, On Amending the Constitution: A Plea for Patience, 12 U. Ark. Little Rock L. Rev. 677 (1990).
Available at: http://lawrepository.ualr.edu/lawreview/vol12/iss4/1
This Article is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in
University of Arkansas at Little Rock Law Review by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more
information, please contact [email protected].
Article 1
UNIVERSITY OF ARKANSAS AT LITTLE ROCK
LAW JOURNAL
VOLUME
12
1989-90
NUMBER
4
ON AMENDING THE CONSTITUTION:
A PLEA FOR PATIENCE*
Ruth Bader Ginsburg**
1.
INTRODUCTION
The United States is not among the world's older nations, but
our Constitution, drafted in 1787, is the oldest written constitution
still in use.' (Half the world's nations have constitutions written since
1970.2) Apart from the Bill of Rights, made up of the first ten amendments, a Bill promised at the start and added in 1791, the Constitution has been amended only sixteen times in the two centuries it has
served as our nation's fundamental instrument of government. One
might say ours has been a Constitution hard to amend and hardly
amended. Should we keep it that way? Comments on this question,
in the daily press as well as in academic circles, were stimulated by
the Supreme Court's June 21, 1989 decision in Texas v. Johnson.'
That decision held incompatible with the freedom of speech provision
of the first amendment a Texas law making it a criminal offense to
©Ruth Bader Ginsburg 1990.
* This comment was presented on February 7, 1990 at the University of Arkansas at
Little Rock School of Law as the Spring 1990 Ben J. Altheimer Lecture.
** United States Court of Appeals, District of Columbia Circuit.
The author acknowledges, with appreciation, the grand assistance, throughout the composition of this comment, of her 1989-1990 law clerk, Matthew Roberts.
1. See A. PEASLEE, CONSTITUTIONS OF NATIONS 4 (1950).
2. See A. BLAUSTEIN & G. FLANZ, CONSTITUTIONS OF THE COUNTRIES OF THE
WORLD (Supp. 1988).
3. 109 S. Ct. 2533 (1989).
678
UALR LAW JOURNAL
[Vol. 12:677
desecrate the flag in a way the actor knows will seriously offend
onlookers.4
Is the decision in Texas v. Johnson the kind of event that should
trigger a constitutional amendment? In deciding on your answer to
that question, consider which, if any, of the scores of current bills that
propose amendments you would want to enshrine in the Federal Constitution. As the twenty-seventh amendment, would you favor an
abortion ban;5 or the equal rights amendment; 6 perhaps a balanced
budget requirement;7 or a line-item veto for the President?8 Would
you vote for an amendment to increase the terms of members of the
House of Representatives to four years;9 or one to change the Presi-
dent's term to six years;' ° or to dispense with the electoral college
and, instead, directly elect the President and Vice President?1' What
do you think of a constitutional amendment limiting private spending
on federal election campaigns;' 2 or one permitting voluntary prayer in
public schools;' 3 or another prohibiting busing of school children to
achieve racial integration?' 4 How about an amendment guaranteeing
employment to all citizens;' 5 or one reapportioning seats in the House
of Representatives to take into account alien residents;' 6 or one declaring English the official language of the United States?' 7 All these,
and scores more, have been proposed, unsuccessfully, as constitutional amendments.
4. See TEX. PENAL CODE ANN. § 42.09 (Vernon 1989).
5. See, e.g., S.J. Res. 3, 21; H.R. 623, 626; H.J. Res. 25, 86, 91, 97, 103, 114, 118, 155.
6. See, e.g., S.J. Res. 1;H.J. Res. 1.
7. See, e.g., S.J. Res. 2, 9, 12, 22, 27, 29, 30; H.R. 364; H.J. Res. 3, 4, 5, 9, 16, 33, 34, 40,
42, 43, 58, 61, 70, 85, 96, 162, 189, 268. Cf.H.J. Res. 13 (proposing constitutional amendment
requiring application of any budget surplus to reduce the public debt).
8. See, e.g., S.J. Res. 14, 23; H.R. 61; H.J. Res. 12, 29, 50, 184.
9. See, e.g., H.J. Res. 188, 201, 239. Other proposals would limit the number of terms a
member of Congress could serve. See, e.g., S.J. Res. 17; H.J. Res. 15, 51, 69, 202. Still others
would limit the tenure of judges, H.J. Res. 15, 66, or require their reconfirmation every 10
years, H.J. Res. 99.
10. See, e.g., H.J. Res. 6, 176. Another suggestion to alter presidential tenure would repeal the two-term limit on presidential service. See, e.g., S.J. Res. 36; H.R. 404; H.J. Res. 264.
11. See, e.g., H.J. Res. 2, 6, 137.
12. See, e.g., S.J. Res. 26, 48; H.J. Res. 10.
13. See, e.g., S.J. Res. 144; H.J. Res. 41.
14. See, e.g., H.J. Res. 49.
15. See, e.g., H.J. Res. 172.
16. See, e.g., H.J. Res. 199.
17. See, e.g., H.J. Res. 23, 48, 79, 81. Other proposals run the gamut from permitting
presidential pardons only after conviction, and providing for forfeiture of benefits and compensation by any presidential appointee convicted of a felony, to regulating congressional pay and
repealing the congressional authority to declare war. See, e.g., S.J. Res. 11; H.J. Res. 17, 18,
20, 26, 55, 193; H. Con. Res. 60, 78.
1989-90]
AMENDING THE CONSTITUTION
Was Congress, in years past, wise to resist amendments of a wide
variety? In 1808, for example, Congress rejected a proposal to choose
Presidents by lot from retiring Senators;' 8 in the same year, Congress
turned away an amendment proposing elimination of the Vice Presidency.' 9 In 1893, Congress declined constitutional alteration to
change the name of the nation to United States of the Earth; 20 the
very next year, the national legislature passed over an amendment to
acknowledge God and the Christian religion. 2 1 In 1904, Congress refused an amendment to divide all the land in the United States so that
each citizen would have an equal share; 22 in 1963, Congress declined
to abolish the income tax. 23 Pages from our nation's history bear consultation, I hope you will agree, as we consider what the twenty-seventh amendment should be, for the life of the Constitution has indeed
been our experience in preserving its essence-both the governmental
structures it establishes, and the fundamental human rights it shelters
from governmental destruction or censorship.24 In my article, I will
survey, for the guidance history affords, the design of, and experience
under, the amending process ordained by article V of the
Constitution.
2.
OVERVIEW
I will present first some numbers that summarize the story. Only
twenty-six amendments have achieved ratification, but over ten thousand proposed amendments have been introduced by members of
Congress. 25 Of the twenty-six successful amendments, only four overrode Supreme Court decisions.26 Of the thousands of proposed
18. See H. AMES, PROPOSED AMENDMENTS TO THE CONSTITUTION OF THE UNITED
STATES DURING THE FIRST CENTURY OF ITS HISTORY 328 (1970).
19. See id.
20. See Musmanno, The Difficulty of Amending Our Federal Constitution: Defect or Asset?, 15 A.B.A. J. 505, 507 (1929).
21. See id.
22. See H.R.J. Res. 83, 58th Cong., 2d Sess. (1904).
23. See H.R.J. Res. 23, 88th Cong., 1st Sess. (1963).
24. Cf O.W. HOLMES, THE COMMON LAW 1 (1963) ("The life of the law has not been
logic; it has been experience."); New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921)
("Upon this point a page of history is worth a volume of logic.").
25. See SUBCOMMITTEE ON THE CONSTITUTION, SENATE COMM. ON THE JUDICIARY,
AMENDMENTS TO THE CONSTITUTION: A BRIEF LEGISLATIVE HISTORY, S. REP. No. 87,
99th Cong., 1st Sess. 95 (1985) (9,984 amendments through 1984) [hereafter "Senate Report"];
135 CONG. REC. Index No. 1, at 40 (Jan. 3, 1989) (listing proposals introduced in first days of
101st Congress).
26. See U.S. CONST. amend. XI (overruling Chisholm v. Georgia, 2 U.S. (2 DalI.) 419
(1793)); id. amend. XIV, § I (rejecting Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)); id.
680
UALR LAW JOURNAL
[Vol. 12:677
amendments that lost or languished, only seven received congressional approval, but then failed because not ratified by a sufficient
number of states. The equal rights amendment and the District of
Columbia statehood proposal fit in this category, as does but one-the
proposed Child Labor Amendment-that would have overruled a
High Court judgment.2 7
The congressional restraint and public conservatism this record
shows have assured the endurance of the Constitution despite shifting
political passions. Contrast a story told of the French Constitution
decades after that nation's 1789 revolution: "Have you a copy of the
Constitution?" a Paris bookseller was asked during the second French
Empire. The bookseller's reply: No. "We do not deal in periodical
literature. "28 Our experience in the United States is almost the polar
opposite.
3.
THE AMENDMENT PROCESS
May I next remind you how the amendment process works. Article V, you will recall, sets out two methods for proposing amendments and two modes of ratification. Amendments may be proposed
for ratification by a two-thirds vote of each house of Congress or by a
national convention called by Congress on request of the legislatures
of two-thirds of the states. 29 The first method (two-thirds vote of the
House and Senate) has been used for every amendment so far proposed for ratification.3" But there have been some close calls for employing a national convention instead.31 Most recently, thirty-two
states, just two states shy of the two-thirds required, applied for a
constitutional convention to consider a balanced budget amendment.3 2 In the 1960s, thirty-two states petitioned for a convention to
amend.
amend.
27.
28.
(1927).
29.
XVI (overturning Pollock v. Farmers' Loan & Trust Co., 157 U.S. 429 (1895)); id.
XXVI (nullifying in part Oregon v. Mitchell, 400 U.S. 112 (1970)).
See Senate Report, supra note 25, at 96-98.
See J. BECK, THE CONSTITUTION OF THE UNITED STATES 1787-1927, at 16-17
U.S. CONST. art. V.
30. See Mathias, What's the Constitution Among Friends?, 67 A.B.A. J. 861 (1981).
31. See, e.g., Gibbons, The Eleventh Amendment and State Sovereign Immunity: A Rein-
terpretation, 83 COLUM. L. REV. 1889, 1931-32 (1983) (discussing role of convention threat in
spurring passage of Bill of Rights and eleventh amendment); Mathias, supra note 30 (discussing convention petitions calling for outlawing polygamy, altering federal taxing power, and
reversing Supreme Court's one-person, one-vote decisions).
32. See Gunther, The Convention Method ofAmending the United States Constitution, 14
GA. L. REV. 1,2 (1979) (30 states had petitioned by 1979); Schumer, Is There a Constitutional
Convention in America's Future?, 2 (unpublished manuscript September 18, 1984) (two more,
making the total 32, filed petitions by 1984).
AMENDING THE CONSTITUTION
1989-90]
override the Supreme Court's one-person one-vote decisions.3 3
Once an amendment is proposed, ratification requires the approval of three-fourths of the states, either by the state legislatures or
by special state conventions, as Congress specifies.3 4 To date, Congress has submitted every proposed amendment to the state legislatures for ratification rather than to specially-installed state
conventions, except for the twenty-first amendment, which repealed
prohibition.3 5
This two-step process, requiring supermajorities at both proposal
and ratification stages, promotes cautious deliberation and demands a
strong consensus before constitutional change is ordered. The original draft of article V allowed ratification by two-thirds of the states,
36
but the framers heightened the required proportion to three-fourths.
The framers wanted to establish a regime that would make it possible
to cure "discovered faults" in our constitutional structure and
system,3 7 but they sought to build into the process "stability," 3 and
checks against "experiments"; 39 they deliberately constructed "obstacles" and "delays" sufficient to block "light or frequent
innovations. "I
4.
FOUR EPISODES OF CONSTITUTIONAL CHANGE
I turn now to the major episodes of change accomplished by constitutional amendment. Amendments that successfully ran the arduous course from proposal through ratification cluster in four discrete
periods: first, the Bill of Rights along with the next two amendments
adjusted the Constitution early on (in the years 1791-1804) to meet
anti-federalist concerns; second, six decades later, the thirteenth
through fifteenth amendments marked the Reconstruction following
the Civil War (1865-1870); change next occurred in the Populist and
Progressive Era (1913-1920); in modem times, in the wake of the
spreading civil rights movement of the 1960s, amendments continued
33. See Mathias, supra note 30.
34. See U.S. CONST. art. V.
35. Compare Senate Report, supra note 25, at 67 with Dellinger, Amending Process, I
ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION
47 (1986).
36. Compare J. ELLIOT, DEBATE ON THE ADOPTION OF THE FEDERAL CONSTITUTION
129-32 (1937) with U.S. CONST. art. VI.
37.
THE FEDERALIST No. 43, at 291 (J. Madison) (Ford ed. 1898).
38.
Id. No. 49, at 335-36 (J. Madison).
39. 3 J. STORY, COMMENTARIES ON THE CONSTITUTION §§ 1821-24 (1933).
40.
ST. G. TUCKER, BLACKSTONE'S COMMENTARIES app. at 371-72 (1803).
UALR LAW JOURNAL
[Vol. 12:677
the expansion of the electorate.4 1 I will briefly survey these four clusters of constitutional alteration.
The first ten amendments, which we honor collectively as the Bill
of Rights, were anticipated before adoption of the Constitution. The
promise of their enactment became essential to win the support of
several of the state ratifying conventions.4 2 By providing explicit recognition of states rights and safeguards for individual liberty, the Bill
of Rights softened objections to the union established by the basic
instrument of federal government.43
Because we regard human rights protections anchored by the Bill
of Rights as our nation's hallmark and pride, I will digress to note the
salient character of those provisions." The first ten amendments do
not really declare rights; instead, they assume the existence of core
individual rights and simply command that the government keep its
hands off.4 5 The founding fathers thought in the natural rights vein.
Human rights, in their view, antedated the state (or nation). They
were given by Higher Authority. They were not the government's to
confer. Rather, the government was to be kept from trampling on
them.
So our first amendment does not say, as the celebrated French
Declaration of the Rights of Man does: "[E]very citizen may speak,
write and publish freely, provided he be responsible for the abuse of
this liberty, in the cases determined by law." 46 Instead, the first
amendment assumes the basic right for all humankind (not only citizens) and simply says: "Congress shall make no law.., abridging the
freedom of speech or of the press."' 47 Is that pristine statement worth
unmodified retention? Would it be preferable to add, in line with the
French and most contemporary human rights charters, "except for
laws punishing abuse of this freedom"? Would it be better still to
append an illustrative catalogue, so as to allow, explicitly, laws holding individuals responsible for obscene speech, indecent speech, racist
41. See Dellinger, The Legitimacy of ConstitutionalChange: Rethinking the Amendment
Process, 97 HARV. L. REV. 386, 427-29 (1983).
42. See Senate Report, supra note 25, at 4-5; A. GRIMES, DEMOCRACY AND THE
AMENDMENTS TO THE CONSTITUTION 3 (1978).
43. See A. GRIMES, supra note 42.
44. See generally Henkin, Rights: American and Human, 79 COLUM. L. REV. 405 (1979);
Henkin, Rights: Here and There, 81 COLUM. L. REV. 1582 (1981).
45. See Henkin, Rights: Here and There, 81 COLUM. L. REV. 1582, 1584-86 (1981).
46. DECLARATION OF THE RIGHTS OF MAN AND OF THE CITIZEN OF 26 AUGUST 1789,
art. 11.
47. U.S. CONST. amend. I.
1989-90]
AMENDING THE CONSTITUTION
683
48
speech, speech denigrating women, anti-Semitic speech, blasphemy?
So far, we have steadfastly resisted that approach. No amendment to
date has tampered with the Bill of Rights.
Returning to episodes of amendments, the eleventh and twelfth
amendments might be ranked with the first ten because they also responded to initial anxieties about the rights of the states and of the
people-at least those of the people who, at that time, enjoyed the
franchise.4 9 (The electorate of the framers' day excluded blacks, women, and even white men who owned no property.) The eleventh
amendment overrode the Supreme Court's decision in Chisholm v.
Georgia;5 the amendment, as construed, has blocked suit against a
state in federal court without the state's consent. 5' The twelfth
amendment, a complicated one, provided for separate voting (by the
Electors) for President and Vice President; it made the presidential
election process then in effect more majoritarian and, incidentally, enabled the Republicans of that day to consolidate their recent ascension to national power.52
From 1804, the year the twelfth amendment was ratified, until
after the Civil War, no amendments were added to the Constitution.
Then, in quick progression from 1865 to 1870, the three Reconstruction amendments ended slavery, extended the franchise to black men,
made equality a constitutional norm, and reinforced the supremacy of
48. See Glasser, Bush Lowers the Flag, N.Y. Times, June 28, 1989, at A23, col. 1.
49. See Dellinger, supra note 41, at 428; cf. Marshall, Reflections on the Bicentennial of
the United States Constitution, 101 HARV. L. REV. 1, 2 (1987) (commenting on exclusion of
slaves and women from Founding Fathers' concept of "the People").
50. 2 U.S. (2 Dall.) 419 (1793).
51. This broad statement represents the prevailing judicial interpretation of the amendment. See Hans v. Louisiana, 134 U.S. 1 (1890) (citizens of state cannot sue own state without
state's consent); see also Principality of Monaco v. Mississippi, 292 U.S. 313 (1934) (foreign
governments cannot sue unconsenting states). The prevailing interpretation has been criticized
in commentary, see, e.g., Gibbons, supra note 3 1, and sources cited infra note 80, and is disapproved by four of the current Supreme Court Justices, see Atascadero State Hosp. v. Scanlon,
473 U.S. 234, 247 (1985) (Brennan, J., joined by Marshall, Blackmun, and Stevens, JJ., dissenting) (amendment precludes federal jurisdiction over suits against states only when sole basis of
jurisdiction is diversity of citizenship).
52. The original election process tended to result in selection of a President and Vice
President of different political parties. See Senate Report, supra note 25, at 19. Under the
system inaugurated by the twelfth amendment, both the President and the Vice President
would likely belong to the party supported by the majority of voters, thus allowing this majority more effectively to advance its desired policies. The change ordered by the amendment
immediately benefitted the Republicans, who held a slim popular majority. See A. GRIMES,
supra note 42, at 22-26; see also Senate Report, supra note 25, at 20 (noting that the Republicans proposed the twelfth amendment as soon as they gained a sufficiently large majority in
Congress).
UALR LAW JOURNAL
.[Vol.
12:677
the national government. 53 The central fourteenth amendment prescription declared: "All persons born or naturalized in the United
States . . . are citizens of the United States and of the State wherein
they reside."'54 That statement overruled the Supreme Court's decision in Dred Scott v. Sandford," the 1857 judgment declaring that no
black person, even if freed from slavery, could be or become a "citi56
zen" of state or nation.
Over forty years passed between ratification of the fifteenth
amendment in 1870, giving black men the right to vote, and the first
constitutional fruits of the Populist and Progressive Movements. The
sixteenth amendment, ratified in 1913, overruled the Supreme Court's
decision in Pollock v. Farmers' Loan and Trust Co.,17 and thereby
cleared the path for a personal federal income tax.5 8 That same year
the seventeenth amendment, providing for direct election of Senators,
became part of the Constitution. 9 Before the seventeenth amendment, Senators were elected by the state legislatures. The seventeenth
amendment's extension of direct democracy, some who study the
Constitution believe, had as a side effect reduction of the vigilance
with which state interests are represented in Congress.'
The moral flank of the Progressive crusade shows up in the eighteenth amendment, ratified in 1919, prohibiting the manufacture, sale,
or transportation of intoxicating liquors. 6 ' It is the only individual
liberty-curtailing amendment ever adopted 62 and, coincidentally, the
only amendment ever repealed. Last of the successful Progressive
53. See Senate Report, supra note 25, at 25-36.
54. U.S. CONST. amend. XIV.
55. 60 U.S. (19 How.) 393 (1857).
56. See id.at 403-27. On the extraordinary ratification history of the fourteenth amendment, see J. JAMES, THE FRAMING OF THE FOURTEENTH AMENDMENT 192-93 (1956).
57. 158 U.S. 601 (1895).
58. The Populists desired a tax to alleviate social inequalities and to fund reforms addressing the deteriorated turn-of-the-century economic situation. See Senate Report, supra note 25,
at 41; A. GRIMES, supra note 42, at 69.
59. See Senate Report, supra note 25, at 45-46; A. GRIMES, supra note 42, at 82.
60. In a letter to me dated July 27, 1989, Justice Scalia confirmed his view "that the
Seventeenth Amendment was the real death knell for a federal system with any enforceable
constraints upon the scope of the union's activities."
61. See A. GRIMES, supra note 42, at 89-90.
62. See Tribe, A Constitution We Are Amending: In Defense of A Restrained Judicial
Role, 97 HARV. L. REV. 433, 441 (1983); A. GRIMES, supra note 42, at 89. The sixteenth
amendment, granting Congress the power to levy income taxes without regard to any census or
enumeration and without apportionment among the states, enlarged congressional power, but
did not contract any individual rights or liberties contained in the Bill of Rights or elsewhere
in the Constitution.
1989-90]
AMENDING THE CONSTITUTION
685
amendments, 63 and preceded by a century of struggle, the nineteenth
amendment, ratified in 1920, secured to women citizens the right to
vote. 64
Before the spate of amendments closest to the current time, three
discrete, relatively uncontroversial amendments gained approval. In
1933, the states ratified the twentieth amendment, which shortened
the lame duck session of Congress.6 5 State conventions later the same
year ratified the twenty-first amendment which repealed prohibition.66
Last in this set of three, in 1947, following President Franklin Delano
Roosevelt's death during his fourth term in office, the twenty-second
amendment, which limits presidential tenure to two terms, became
constitutional law.6 7
The civil rights activity in the 1960s propelled the fourth major
episode of amendments. Except for the twenty-fifth amendment on
presidential succession, which was sparked by the assassination of
President Kennedy, all amendments made from 1961 to 1971 were
designed to advance participatory democracy. 68 The twenty-third
amendment, ratified in 1961, gave the District of Columbia three
votes in the electoral college. 69 The twenty-fourth amendment, in
1964, outlawed the poll tax. 7° The twenty-sixth amendment,
prompted by the Supreme Court's decision in Oregon v. Mitchell,71 set
eighteen as the minimum voting age in federal and state elections.7 2
To summarize what this review of the Constitution's twenty-six
63. The unsuccessful Child Labor Amendment, sent by Congress to the states for ratification in 1924, was also a product of the Progressive Era. The amendment would have overruled
the Supreme Court's decisions in Hammer v. Dagenhart, 247 U.S. 251 (1918), and Bailey v.
Drexel Furniture Co., 259 U.S. 20 (1922), by permitting Congress to regulate or prohibit the
employment of any person under 18 years of age. See Senate Report, supra note 25, at 97.
64. To complement the nineteenth amendment, an Equal Rights Amendment has been
proposed every year commencing in 1923. See CONSTITUTIONAL AMENDMENTS ANNUAL
REPORT 1976, S. REP. No. 126, 95th Cong., 1st Sess. 2 (1977). The nineteenth amendment
and the ERA could work together in much the same mutually reinforcing way as the fifteenth
and fourteenth amendments.
65. See Senate Report, supra note 25, at 62; Dellinger, supra note 41, at 428 n.214.
66. See Senate Report, supra note 25, at 67. The twenty-first is the only amendment for
which Congress has chosen the state convention method of ratification. This method was
endorsed by both the Republican and Democratic parties in their platforms because the urbandominated parties believed that pro-prohibition rural elements were overrepresented in Congress. See id. at 66.
67. See id. at 69-72; Dellinger, supra note 41, at 428 n.21 4 .
68. See A. GRIMES, supra note 42, at 153-54.
69. See U.S. CONST. amend. XXIII.
70. See id. amend. XXIV.
71. 400 U.S. 112 (1970).
72. See U.S. CONST. amend. XXVI.
686
UALR LAW JOURNAL
[Vol. 12:677
amendments reveals: with the exception of a few noncontroversial
amendments, constitutional changes have occurred in clusters, reflecting alterations in society long building steam and coming to full boil
in particular periods. Most of the twenty-six amendments safeguarded rights, expanded the franchise, or made structural adjustments. The one liberty-restraining prohibition, the eighteenth
amendment, lasted less than fifteen years."' As already underscored,7 4 only four amendments reversed outcomes declared in
Supreme Court decisions. I will spotlight now those four instances.
5.
SUCCESSFUL OVERRIDES OF SUPREME COURT DECISIONS
The eleventh amendment, first to overturn a Supreme Court interpretation, settled a debate that originated at the Constitutional
Convention itself. The Convention delegates divided sharply on the
question whether federal courts should have authority to entertain
lawsuits-particularly lawsuits to collect debts-prosecuted against
states by citizens of other states. 7 ' The language devised for article
III deliberately left resolution of the question unclear. 6 In Chisholm
v. Georgia,77 the Supreme Court sustained federal court jurisdiction
when persons from out of state sued a state. 8 States rights sentiments
heated up79 and by 1795, the High Court's 1793 Chisholm v. Georgia
decision was no longer constitutional law.8 ° The overruling by constitutional amendment appears swift, but the percolation period in fact
73. Enacted in 1919, it was repealed by the twenty-first amendment in 1933. See supra
text accompanying notes 61 and 66.
74. See supra note 26 and accompanying text.
75. See 1 C. WARREN, THE SUPREME COURT IN UNITED STATES HISTORY 91 (1937);
Senate Report, supra note 25, at 13.
76. See U.S. CONST. art. III, § 2, cl. 1.
77. See 2 U.S. (2 Dall.) 419 (1793).
78. See id.
79. See Gibbons, supra note 31, at 1931-32.
80. See id. at 1933-34. As indicated supra note 51, the prevailing, but much criticized,
interpretation of the eleventh amendment bars all suits in federal court in which a state is the
named defendant. Some maintain that the amendment precludes federal jurisdiction over suits
against states only when the sole basis of federal jurisdiction is diversity of citizenship. See,
e.g., Amar, Of Sovereignty and Federalism, 96 YALE L.J. 1425, 1473-92 (1987); Fletcher, A
Historical Interpretation of the Eleventh Amendment: A Narrow Construction of an Affirmative
Grant of Jurisdiction Rather Than a Prohibition Against Jurisdiction, 35 STAN. L. REV. 1033
(1983); Gibbons, supra note 31.
Others assert that the amendment restricts the authority of federal courts to adjudicate
cases against the states only in the absence of a congressional enactment allowing suits against
the states. See Nowak, The Scope of Congressional Power to Create Causes of Action Against
State Governments and the History of the Eleventh and Fourteenth Amendments, 75 COLUM. L.
REV. 1413 (1975); Tribe, Intergovernmental Immunities in Litigation, Taxation, and Regula-
1989-901
AMENDING THE CONSTITUTION
ran some seven years, commencing as it did at the Convention in
1787.
Probably best known of the overruling amendments, as indicated
earlier, the first section of the fourteenth amendment"' rectified in
82
1868 what the Supreme Court did in 1857 in the Dred Scott Case.
That now infamous decision held the Missouri Compromise barring
slavery from the territories unconstitutional; in the process, the Court
had classed slaves as property and, as just mentioned,
declared them,
83
even when freed, incapable of acquiring citizenship.
Among the Progressive Era amendments, recall that I listed first
the sixteenth amendment, which paved the way for a secure personal
income tax. The sixteenth amendment did so by nullifying the
Supreme Court's ruling in Pollock v. Farmers'Loan and Trust Co. ;84
in that 1895 decision, the High Court declared a federal tax on income from state and local bonds to be a "direct tax" within the meaning of article I, section 9, clause 4, and therefore impermissible unless
apportioned among the states according to population. Taxation
nowadays may be as certain as death, but it is not high on the public
popularity list; correction to allow for a personal income tax by negating the Court's ruling in the Pollock case, understandably, was not
swift. First, Congress passed a statute imposing a tax on corporate
income.8 5 Ultimately, in 1913, eighteen years after the Supreme
Court's decision in Pollock, the sixteenth amendment achieved ratification.6 (Undaunted, pro se litigants in federal courts, to this day,
argue the unconstitutionality of the personal income tax.)
Most recent of the four amendments changing a Supreme Court
outcome, the twenty-sixth amendment, ratified in 1971, guarantees
tion: Separation of Powers Issues in Controversies About Federalism, 89 HARV. L. REV. 682,
683-99 (1976).
Still others offer theories that are amalgams of or variations on the above. See, e.g., Field,
The Eleventh Amendment and Other Sovereign Immunity Doctrines: Part One, 126 U. PA. L.
REV. 515 (1977); Field, The Eleventh Amendment and Other Sovereign Immunity Doctrines.
CongressionalImposition of Suit upon the States, 126 U. PA. L. REV. 1203 (1978); Jackson,
The Supreme Court, the Eleventh Amendment, and State Sovereign Immunity, 98 YALE L.J. 1
(1988); Marshall, Fighting the Words of the Eleventh Amendment, 102 HARv. L. REV. 1342
(1989),
81. See U.S. CONST. amend. XIV.
82. 60 U.S. (19 How.) 393 (1857).
83. See id. at 403-27, 450-52.
84. 158 U.S. 601 (1895).
85. See Act of Aug. 5, 1909, ch. 6, 11, 36 Stat. 112-17 (1909); A. GRIMES, supra note 42,
at 73.
86. See Senate Report, supra note 25, at 41-44.
688
UALR LAW JOURNAL
[Vol. 12:677
the right to vote to citizens eighteen years of age and older.8 7 The
Supreme Court decision prompting the amendment was Oregon v.
Mitchell,8 which held that the equal protection clause did not prohibit the states from establishing twenty-one as the minimum voting
age. It has been sensibly maintained that Congress, when it proposed
the twenty-sixth amendment, did not really disagree with or alter the
Supreme Court's interpretation of the equal protection clause; instead, Congress simply acted to secure, uniformly, the voting rights of
all citizens at age eighteen. 9
Two facets of the twenty-sixth amendment bear emphasis. First,
although ratification occurred in less than a year, the matter of the
vote for eighteen year olds had been debated for decades, and the
amendment confirmed an already settled consensus. 9° Second, Oregon v. Mitchell was brought for the very purpose of trying out
whether a federal statute lowering the voting age to eighteen could
obviate the need for a constitutional amendment. 9' Once again, the
route of constitutional change followed lengthy deliberation and was
pursued only after the Supreme Court ruled that a statutory solution
was not adequate to the task.
The nineteenth (sometimes called votes-for-women) amendment,
I should note in this context, effectively redressed in 1920 a Supreme
Court decision of 1874, Minor v. Happersett.9 2 In that case, brought
by Virginia Minor, a citizen of Missouri and of the United States, the
Supreme Court held that the right to vote was not among the fourteenth amendment "privileges and immunities of citizens of the
United States," hence states were not inhibited by the Constitution
from committing "that important trust to men alone." 93 The Court
did acknowledge that, beyond doubt, women are "persons" and may
be "citizens" within the meaning of the fourteenth amendment. But
the Court also pointed out that children qualify under both headings. 94 And who would suggest children should have the right to
vote? Coupling women with children, you see, does not always favor
women.
87. See U.S. CONST. amend. XXVI.
88. 400 U.S. 112 (1970).
89. See Dellinger, supra note 41, at 415. See also A. GRIMES, supra note 42, at 143 (stating that the twenty-sixth amendment attempted "to clarify the voting situation in light of
Oregon v. Mitchell").
90.
91.
92.
93.
94.
See Senate Report, supra note 25, at 89-90.
See id.at 89.
88 U.S. (21 Wall.) 162 (1874).
Id. at 175, 178.
See id. at 168, 174.
1989-90]
AMENDING THE CONSTITUTION
689
Virginia Minor's case caused barely a ripple in the ancient days
and society in which it arose. So the nineteenth amendment has not
been perceived as a reaction to the decision, and commentators have
not included the votes-for-women guarantee on the list of amendments upsetting High Court dispositions. 95 The nineteenth amendment was in fact the product of protracted debate continuing for
decades,96 a debate in which Supreme Court decisions played no lead
role. 97
6.
AMENDMENTS PROPOSED IN CONGRESS
To recapitulate, constitutional amendments overriding Supreme
Court decisions have numbered only two per century. One should not
infer from that low number, however, any strong tendency among
Supreme Court Justices to vote in whatever way "the home crowd
wants." 98 Literally hundreds of amendments have been proposed just
in the last twenty-five years to counteract Supreme Court judgments
unpopular in certain quarters. I will list some familiar, testing
examples.
In Engel v. Vitale,9 9 a 1962 decision, the Supreme Court held as
unconstitutional prayer at assemblies in public schools. Within three
days, members of Congress reacted: over fifty bills were introduced in
the span of seventy-two hours proposing constitutional amendments
to upset the Engel v. Vitale decision. In the aftermath of a decision
the next year curtailing Bible reading in public schools," ° the number
of bills for amendment swelled to over one hundred fifty. 10 ' In the
first ten years following the Supreme Court's 1973 abortion decisions,
Roe v. Wade 10 2 and Doe v. Bolton, 1°3 members of Congress filed over
two hundred proposals for overruling the decisions by constitutional
95. See J.
CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS
49 &
n.133 (1980); L. TRIBE, AMERICAN CONSTITUTIONAL LAW § 3-6, at 64-65 & n.10 (2d ed.
1988).
96. See generally E. FLEXNER, CENTURY OF STRUGGLE: THE WOMEN'S RIGHTS MOVEMENT IN THE UNITED STATES (rev. ed. 1975).
97. But cf Bradwell v. Illinois, 83 U.S. (16 Wall.) 130 (1872); United States v. Anthony,
24 F. Cas. 829 (t.C.N.D.N.Y. 1873) (No. 14,459).
98. Rehnquist, Act Well Your Part: Therein All HonorLies, 7 PEPPERDINE L. REV. 227,
229-30 (1980).
99. 370 U.S. 421 (1962).
100. See Abington School District v. Schempp, 374 U.S. 203 (1963).
101. See Stone, In Opposition to the School PrayerAmendment, 50 U. CHI. L. REV. 823,
826 (1983).
102. 410 U.S. 113 (1973).
103. 410 U.S. 179 (1973).
690
UALR LAW JOURNAL
[Vol. 12:677
amendment.' °4 Swann v. Charlotte-Mecklenburg Board of Education, 0 5 the 1971 decision (written by Chief Justice Burger) allowing
busing as a remedy in urban school desegregation cases, prompted a
similarly large number of amendment proposals.1 16 In the 1970s after
the Supreme Court decided Furman v. Georgia,10 7 several dozen bills
were introduced to root firmly in the Constitution the states' right to
impose capital punishment.
Among other conspicuous targets of proposals for overruling by
constitutional amendment, I call your attention particularly to the
Supreme Court's legislative reapportionment (one-person, one-vote)
decisions"0 8 and the Court's invalidation of the legislative veto. 10 9
Newest in the Court-checking hopper are the multiple proposals to
change the Constitution to permit statutory prohibition of flag
desecration. "10
Time and the rigors of the amendment process will tell whether
popular support for any of these amendment proposals is sufficiently
deliberate and durable to yield a twenty-seventh, twenty-eighth,
twenty-ninth, even thirtieth amendment.
7.
AMENDMENTS REFERRED TO THE STATES
Indicative of our pride and faith in the Constitution, the large
bulk of proposed amendments have been stopped at the initial stage.
They failed to attract the endorsement of two-thirds of each house of
Congress and therefore were never sent to the states for ratification.
To complete this excursion over constitutional amendment terrain, I
will feature the seven amendments that failed to achieve ratification
after Congress gave its approval and passed them on to the states.
Only one of those seven, as I said before, the Child Labor Amendment, was framed to override a Supreme Court decision.
The Child Labor Amendment, submitted to the states for ratification in 1924, would have overturned Supreme Court holdings that
104. See Davis, ProposedAmendments to the Constitution of the United States of America
Introduced in Congress from the 91st Congress, 1st Session, through the 98th Congress, 2nd
Session, January 1969 - December 1984, Congressional Research Service Report No. 85-36
GOV, at 287, 312 (February 1, 1985) [hereafter "CRS Report"].
105. 402 U.S. 1 (1971).
106. See CRS Report, supra note 104, at 290-99.
107. 408 U.S. 238 (1972).
108. See, e.g., CRS Report, supra note 104, at 287.
109. See, e.g., S.J. Res. 135, 98th Cong., 1st Sess. (1983).
110. See, e.g., S.J. Res. 165, 167, 169, 171, 179-80; H.J. Res. 302-10, 314-15, 317-19, 32126, 328-37, 339-40, 342-43, 348-51, 359-60, 365, 377, 101st Cong., 1st Sess. (1989).
1989-90]
AMENDING THE CONSTITUTION
Congress lacked authority to regulate child labor." 1 By 1937, however, only twenty-eight states had ratified the proposal." 2 Congress
once again tried a statutory solution when it dealt with the subject in
the Fair Labor Standards Act of 1938.'13 Constitutional doctrine had
evolved in the interim, and in 1941, the Court upheld the child-protective legislation as within the range of the commerce power. 114 Deliberation fueled by the amendment process had combined with the
evolution of doctrine on a changing Court to render superfluous any
embellishment of the Constitution's text.
The first two of the seven amendments that failed at the ratification stage were packaged with the Bill of Rights. One provided a
formula for the number and ratio of Representatives, the other required deferral of any pay change Congress passed for its members
until a new House of Representatives was elected." 5 Only the one
regulating the number of Representatives came close to ratification.1 16
Four of the state conventions that ratified the Constitution had
recommended a prohibition on the acceptance of a title of nobility by
any United States citizen.' 17 There was insufficient support for such
an amendment in the First Congress, 1 8 but the Eleventh Congress, in
1810, approved the prohibition as the prospect of the War of 1812
loomed larger." 9 The amendment fell just one state short of the required number for ratification. 20 Thus, without fearing a federal case
challenging his action, former President Ronald Reagan, on June 14,
1989, became an honorary Knight Grand Cross of the Most Honorable Order of the Bath, the fifty-seventh United States citizen so to
121
receive an honorary knighthood from the British crown.
Article V, on constitutional amendments, includes three subject
matter limitations. Two ran out in 1808. Until that year, Congress
111. See Hammer v. Dagenhart, 247 U.S. 251 (1918); Bailey v. Drexel Furniture Co., 259
U.S. 20 (1922).
112. See Fisher, ConstitutionalInterpretation by Members of Congress, 63 N.C.L. REV.
707, 744 (1985). Unlike later proposed amendments, the Child Labor Amendment has no
expiration date, but subsequent Supreme Court interpretations of the commerce clause have
rendered its enactment unnecessary. See United States v. Darby, 312 U.S. 100 (1941).
113. Pub. L. No. 88-352, 78 Stat. 241 (1964).
114. See United States v. Darby, 312 U.S. 100 (1941).
115. See Senate Report, supra note 25, at 96.
116. The first was ratified by nine of the ten states necessary to make it effective while the
second was ratified by only six states. See H. AMES, supra note 18, at 320.
117. See id. at 186.
118. See id.
119. See id. at 188.
120. See id.
121. See Conconi, Personalities,Washington Post, June 15, 1989, at C3.
UALR LAW JOURNAL
[Vol. 12:677
could not amend the Constitution to cut off the slave trade or to lay a
direct tax not "in Proportion to the Census."'' 22 The third limit, that
"no State, without its Consent, shall be deprived of its equal Suffrage
in the Senate," 1'23 is still in force. In 1861, in a last ditch effort to
avert the Civil War, Congress passed on to the states another limit,
one that prohibited amendment of the Constitution to give Congress
the power to abolish slavery. Only three states ratified that antiEmancipation Proclamation amendment. 124 No proposal since then
25
sent to the states would have amended the amending process itself.'
The Equal Rights Amendment (ERA), almost a half century after it was first introduced in Congress, was approved for state ratification in 1972. The amendment explicitly acknowledges the equal
stature of men and women before the law. It never garnered more
than thirty-five of the thirty-eight state votes needed for ratification.
As the clock ran on the ERA, turbulent questions arose concerning
the effect of purported rescissions of ratification 126 and of a three-year
extension of the original seven-year ratification deadline. 1 27 During
the years the ERA pended in state legislatures, the Supreme Court
began to apply heightened scrutiny to gender-based classifications, so
the need for the amendment seemed less pressing in 1979 than it did
in 1972.128
Still, if I may add a personal note, I believe we should have an
ERA by the year 2000, simply to confirm a development that has
already occurred in society at large. 129 Women, it is true, were not
part of the political constituency in 1787, or even 1868. A provision
recognizing their equal stature under the law would be at the level of
grand or fundamental principle; it would complement the fourteenth
122. See U.S. CONST. art. V, § 9, cl. 1, 4; id. art. V.
123. See id. art. V.
124. See H. AMES, supra note 18, at 196.
125. See Senate Report, supra note 25, at 96-97. It is also notable as the only proposed
amendment ever signed by the President, an event that is not required for ratification under
article V. Id.
126. See Ginsburg, Ratification of the Equal Rights Amendment: A Question of Time, 57
TEX. L. REV. 919, 939-42 (1979).
127. Compare id. at 919-45 with Rees, Throwing Away the Key: The Unconstitutionalityof
the Equal Rights Amendment Extension, 58 TEX. L. REV. 875 (1980).
128. See generally Ginsburg, Remarks on Women Becoming Part of the Constitution, 6
LAW & INEQUALITY 17 (1988); Williams, Sex Discrimination: Closing the Law's Gender Gap,
in THE BURGER YEARS: RIGHTS AND WRONGS IN THE SUPREME COURT 1969-1986, at 109
(H. Schwartz ed. 1987).
129. See, e.g., Ginsburg, Sex Discrimination, in CIVIL RIGHTS AND EQUALITY 291 (L.
Levy, K. Karst, D. Mahoney ed. 1989); Rhode, Equal Rights in Retrospect, 1 LAW & INEQUALITY 1, 69-72 (1983).
1989-90l
AMENDING THE CONSTITUTION
amendment, just as the nineteenth amendment complements the fifteenth. ERA-style prescriptions now appear in the constitutions of
several states of the United States, in the constitutions of diverse foreign nations, and in international human rights declarations.130 Experience under these provisions should afford reassurance. That is what
happened in the case of suffrage for women. Once it became clear
from the experience in states with female suffrage, that votes for women would not destroy the home and family as we know and cherish
those institutions, a national amendment became inevitable.
To conclude the list of seven amendments that passed in Congress but not in the states, the District of Columbia statehood amendment was opened for ratification in 1978. It had attracted only
sixteen approvals when the time for ratification ran out.' 3 '
8.
CONCLUSION
To sum up, what lessons does history teach about amending the
Constitution? First, I suggest, in harmony with the framers' plan,
hasty, ill-considered corrections are out of order. The process was
designed to be lengthy, deliberative, and not frequently invoked.' 32
Second, the genius of our eighteenth century Constitution is its supple
capacity to serve through changing times if supported by judicial in130. Sixteen states have "equal rights" provisions in their constitutions: ALASKA CONST.
art. I, § 3 (1972); COLO. CONST. art. II, § 29 (1973); CONN. CONST. art. I, § 20 (1974); HAWAII CONST. art. I, § 5 (1972); ILL. CONST. art. I, § 18 (1971); MD. CONST. art. 46 (1972);
MASS. CONST. part 1, art. CVI (amending art. I) (1976); MONT. CONST. art. 2, § 4 (1973);
N.H. CONST. part 1, art. II (1974); N.M. CONST. art. 2, § 18 (1973); PA. CONST. art. I, § 28
(1971); TEX. CONST. art. I, § 3 (1972); UTAH CONST. art. 4, § 1 (1896); VA. CONST. art. I,
§ 11 (1971); WASH. CONST. art. 31, § 1 (1972); and Wyo. CONST. art. 1, §§ 2, 3 & art. 6, § 1
(1890). Nine of the state provisions listed above (those for Colorado, Hawaii, Maryland, Massachusetts, New Hampshire, New Mexico, Pennsylvania, Texas, and Washington) are substantially similar to the proposed federal ERA.
The constitutions of several foreign nations also contain ERA-like provisions. See, e.g.,
CONST. OF THE GERMAN FEDERAL REPUBLIC art. 3(2) (1949); CONST. OF THE STATE OF
ISRAEL art. 4 (1948); CONST. OF INDIA art. 15 (1949); CONST. OF THE REPUBLIC OF CHINA
art. 48 (1982); CONST. OF THE FRENCH REPUBLIC preamble (1946); CONST. OF THE USSR
art. 122 (1986). Various human rights declarations and conventions call for gender equality.
See, e.g., UNITED NATIONS CHARTER preamble, arts. 1(3), 55(c), 76 (1945); INTERNATIONAL
LABOR ORGANIZATION CONST. preamble (1948); UNIVERSAL DECLARATION OF HUMAN
RIGHTS art. 23(2) (1948); TREATY OF ROME art. 119 (1958); INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS arts. 2(1), 3 (1966); INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS arts. 2(1), (3) (1966); DECLARATION ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN (1967); CONVENTION ON THE ELIMINATION
OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN (1980).
131. See Senate Report, supra note 25, at 97-98.
132. See supra Part 3.
UALR LAW JOURNAL
[Vol. 12:677
terpretations that are neither "mushy" nor too "rigid."'' 33 The story
of the Child Labor Amendment, showing why the amendment became unnecessary, is illustrative. 134 Finally, the Constitution,
through generations, has remained a foundation of fundamental law,
a clean, uncluttered document. We have resisted am6ndments that
could "trivialize the Constitution and diminish its educative and expressive force as part of our political and legal culture."' 3 5 In the
words of Woodrow Wilson, "[tihe Constitution . . .lay[s] a foundation of principles ... and the fact that it attempts [little] more is its
chief strength."
36
133. Cf Proceedings of the Forty-Ninth Judicial Conference of the District of Columbia
Circuit, 124 F.R.D. 336, 341 (1989) (colloquy between Chief Justice William H. Rehnquist
and Professor Paul A. Freund). See also R. JACKSON, THE STRUGGLE FOR JUDICIAL
SUPREMACY 174 (1979) ("The greatest expounders of the Constitution, from John Marshall to
Oliver Wendell Holmes, have always insisted that the strength and vitality of the Constitution
stem from the fact that its principles are adaptable to changing events.").
134. See supra text accompanying notes 111-14.
135. Tribe, supra note 62, at 442. Professor Tribe, along with other commentators, suggests that state constitutions may command less respect than the Federal Constitution because
they resemble statutory codes more than fundamental laws. Id. at 442 n.42; H. AMES, supra
note 18, at 302; Musmanno, supra note 20; see also B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 83 (1921) ("A Constitution states or ought to state not rules for the passing
hour, but principles for an expanding future. In so far as it deviates from that standard, and
descends into details and particulars it loses flexibility, the scope of interpretation contracts,
the meaning hardens.").
136. W. WILSON, CONGRESSIONAL GOVERNMENT 29 (1981).